Thursday, December 20, 2007

Schilling's Take

I like Curt Schilling's blog even when I disagree with him. And today I disagree with him:

Roger has denied every allegation brought to the table. So as a fan my thought is that Roger will find a way in short order to organize a legal team to guarantee a retraction of the allegations made, a public apology is made, and his name is completely cleared. If he doesn’t do that then there aren’t many options as a fan for me other than to believe his career 192 wins and 3 Cy Youngs he won prior to 1997 were the end. From that point on the numbers were attained through using PED’s. Just like I stated about Jose, if that is the case with Roger, the 4 Cy Youngs should go to the rightful winners and the numbers should go away if he cannot refute the accusations.

I'm not a Clemens apologist, but the notion that (a) he has to sue in order to clear his name, which is the logical end game to Schilling's comments about Clemens getting a legal team together; or (b) he should have his records taken away is silly. We've heard this from several people already, but I'm surprised that Schilling of all people is playing this game.

Now, I think Clemens did steroids and I think he's probably lying about it now, but for the sake of argument, let's assume he isn't, and that Brian McNamee is slandering him. How, exactly, is Clemens supposed to prevail in a lawsuit? The potential causes of action are pretty straightforward: a defamation claim against Mitchell and/or MLB over the contents of the Mitchell report, or a defamation claim against McNamee for the statements he made to Mitchell themselves.

I won't bore you with legal stuff, but in order to win such a lawsuit, Clemens would have to establish that (1) the statements are false and; (2) that, because Clemens is a public figure, they were made with actual malice. Note, though, that "actual malice" in this context doesn't actually mean maliciousness as we know the term. It's more along the lines of the defendant knowing that what they were saying was false when they said it and not caring about it.

A hypothetical Clemens v. Mitchell is dead on arrival. Mitchell was merely reporting what others have said to him under circumstances which gave rise to an indicia of credibility (threat of false statements charges). Thus, even if the statements about Clemens in the report are false, there is no basis for a finding of malice here. Sure, I suppose you could concoct one if you're into that sort of thing (let's see; MLB is looking to torpedo salaries and smear players to help them with collective bargaining or something, so they intentionally and maliciously commissioned a report with the intent of generating false statements in an effort to smear Rocket). Um, yeah, good luck with that.

While there is a slightly better chance of making a case against McNamee in that, hey if he's lying he had to have known it at the time, the prognosis is still decidedly poor. After all, what evidence would Clemens bring to bear in such a lawsuit? Yes, McNamee is on record five years ago lying to the press about steroids, but under oath he could simply cop to lying then in order to protect Clemens and say that he obviously told the truth once he was under oath in front of Mitchell. Like I said the other day: he-said/he-said. Sure, Clemens could win such a case if the jury believed him instead of McNamee, but it's really damn risky, and the incentives for mounting such a case are small, even if he is telling the truth.

All that aside, Schilling knows what it's like to be in the public eye. He knows people say crap about you all the time, and he can't seriously expect someone in Clemens' position to sue every time someone lies about him (not that I think McNamee is lying). Remember the bloody sock controversy? I don't recall Schilling suing over that, even though it was every bit as much an attack on his integrity as the Clemens-steroids stuff. Would it be enough for Schilling if Roger Clemens offered $1M to anyone who could provide hard evidence that he took steroids? I somehow think it wouldn't be.

As for the records, Schilling strikes me as a man who reads history on occasion. He has to understand that you simply can't undo event A and expect events B, C, and D to have remained the same. Who were the "rightful winners" Curt? In 2001 the AL Cy Young runner-up was Mark Mulder. He wasn't in the Mitchell report, but half of his offensive and defensive support was. Is he legit? And while we're having this conversation, are you planning on returning your 1993 NL Championship ring because it was obtained with the help of Lenny Dykstra? Of course you're not, because playing the alternative history game is silly and ultimately leads us nowhere.

So again, Curt, while I love your blog and love your candor, in this case, you're wrong.

10 comments:

jnr98 said...

Thanks for this posting, Shyster. While I personally can't stand Schilling, I do find his blogging generally, um, interesting.

This is not track and field. This is not Marion Jones. This is a team sport with 25 players on a side. Taking away wins is incredibly short-sighted. Who's to say that all 25 guys on the other team are lillywhite pure?

Personal awards? Again, who's to say that #2 was totally, unequivocally clean either? [sidebar #1: How come he didn't mention Gagne's Cy Young award or Tejada's MVP award?]

I'll leave the issues about proving innocence to you, Shyster, since I don't have a legal background.

Again, I am a Yankee fan, born and bred. It's all I know. However, I do my best to maintain a bigger view than most blind Yankee homers out there, or at least I like to THINK I do. All that being said, I absolutely believe Clemens is guilty, just as I believe Bonds is, and Sosa, and McGwire, and Luis Gonzalez, Brady Anderson, Bret Boone, Darin Erstad, Eric Chavez, Mark Mulder, Papi, etc.

I guess that's my way of saying that there is no way to distinguish the clean from the dirty, and to what percentages those two parties made up over the last 10 years or so. Was it 50/50? 60/40? 80/20? Because of that, I'm just going to have to assume that they are all guilty and any performance during this time has to be mentioned within the context of the era.

[sidebar #2: I consider the clean guys as culpable as any other party in this debacle for not standing up and screaming to the Union leaders. I know they wouldn't go to the press for fear of being blackballed, but they could have handled this more aggressively in-house.]

That's all of my ranting for the moment. More to come, maybe.

Anonymous said...

The only thing I would like to say is that I don't believe every player out there used steriods. Although I am in no way naive, and I do believe that a majority of the players did use steriods, there are a few names that I would like to say I believe should go down in history as ones who played the game the correct way. The few players that immediately come to my mind are Craig Biggio, Jeff Bagwell, Greg Maddox and Albert Pujols. I think these are a few of the athletes that play the game with the utmost integrity.

JRosenberg said...

Anon: I am generally in agreement with you... many players did and we hope our favorites are clean. I pray Jeter is 100% clean. But would it surprise me if not, no, sadly. No name would surprise me given the list of names we have seen so far. Not just the best, but the hangers-on, and never-was's.

As far as Bagwell goes, it's popular lore/conspiracy fodder that he was a major early juicer. Just go here: "http://baseballevolution.com/asher/bagwellconspiracy.html". This is the first link that pops up when you Google "Bagwell steroids".

Note the 2007 edit at the bottom, too.

Anonymous said...

I agree with Shilling. I personally know a high school football player who was pressed to accept a needle from his coach. Fortunately, he said no. Players like Clemens make it more difficult for kids to do the right thing.

Anonymous said...

erasing records of what happened is the height of simplistic idiocy.

Drew said...

Anyone else think maybe Curt's a little jealous of someone's career?

Jason said...

I don't think it's jealousy. I just think Curt envisions himself as the "voice of the players", self-appointed, that's all.

Now, should he ever get called out for doing anything unscrupulous, woooboy, that will be a fun day.

Anonymous said...

Curt ain't jealous. He has more rings this century than anyone. Clemens cheated and he's being called out on it. Curt will go into the HOF. I don't know about Roger.

slacker said...

"And while we're having this conversation, are you planning on returning your 1993 NL Championship ring because it was obtained with the help of Lenny Dykstra?"

HAH! priceless..

vinylord said...

Curt may be a right-wing Christian funtamentalist, and totally out of touch with mainstream America, but he is a very good pitcher and teammate and is right for criticizing 'Roi-ger, who is the money-grubbing and stat-padding Evil Empire equivolent to Barry Bonds' West Coast sports-crime spree. How many of the 26 titles the Chokees are always crowing about were not only purchased by the highest payroll, but also played by the dirtiest team? Start adding Clemens, Pettite, Giambi,Sheffield..... to whoever else used on that team of cheater/chokers and I say it's time to give back some rings as well.